Justice White's Principled Passion for Consistency

By Sullivan, J. Thomas | Journal of Appellate Practice and Process, Spring 2002 | Go to article overview

Justice White's Principled Passion for Consistency


Sullivan, J. Thomas, Journal of Appellate Practice and Process


The death of Justice Byron White represents another step toward the end of an era that most of us in midlife as attorneys associate with the Presidency of John Kennedy and the Supreme Court of Chief Justice Earl Warren. (1) President Kennedy's appointment of Justice White to the Court hardly ensured a liberal bent in its rulings; indeed, Justice White clearly proved to be a conservative (2) and moderating influence in a number of areas. (3) Nevertheless, he demonstrated a strain of judicial independence and dedication to principle that encourages us, as lawyers, to believe that all presidential appointments to the High Court have the potential for faithful service to a vision of the Constitution that is not imbedded in extreme political ideology or blindness to the virtues of reasoned argument. (4)

Justice White's most interesting contribution to the work of the Court may well have been reflected in his concern that the Justices exercise their jurisdiction to ensure a uniform application of the law. As attorneys, our ability to serve the interests of our clients requires that we be able to accurately assess the current state of the law and identify trends that may have implications for those clients' peculiar concerns. This is best done when the law is stable, or at the least, progressing on a stable course in an identifiable direction. Uncertainty in doctrine, while undoubtedly of interest to academics and theoreticians, is an anathema to the practitioner whose sound counsel is dependent upon the stability that doctrinal certainty affords.

In case after case presented to the Court for review, Justice White's passion for resolution of conflict is apparent not only in his opinion writing, (5) but in his dissents from the denial of the writ of certiorari. There, recognizing the existence of significant conflict in the approach taken to important constitutional questions by differing lower courts, (6) he argued that the Court should exercise its jurisdiction to resolve or harmonize these divergent approaches. In dissenting from the denial of certiorari in Bailey v. Weinberger, (7) he argued:

   It is a prime function of this Court's certiorari jurisdiction to resolve
   precisely the kind of conflict here presented. Perhaps the state of our
   docket will not permit us to resolve all disagreements between courts of
   appeals, or between federal and state courts, and perhaps we must tolerate
   the fact that in some instances enforcement of federal law in one area of
   the country differs from enforcement in another. Hopefully, these
   situations will be few and far between. (8)

The value of these published dissents lies both in Justice White's unwavering commitment to resolution of conflict in constitutional doctrine, (9) but perhaps more significantly for the practitioner, in his identification of doctrinal variation warranting further development and litigation in the Court. (10)

For example, in Spierings v. Alaska, (11) the petitioner brought a still-unresolved issue of double jeopardy to the Court, questioning whether the Alaska courts had properly held that a jury deliberating on the greater offense could be precluded from considering the lesser-included offense unless it had unanimously agreed to acquit on the greater charge. (12) The defense had requested an instruction permitting the jury to reach the issue of the lesser-included offense in the event jurors were deadlocked on the greater charge. The trial court rejected the proposed instruction and was upheld by the Alaska Court of Appeals (13) and a majority of the Alaska Supreme Court. (14) But a dissent in the state supreme court (15) argued for the alternative instruction proposed by the defense, (16) raising the specter of conflicting approaches taken by other jurisdictions, including the Ninth Circuit Court of Appeals. (17)

Justice White perceived the significance of the conflicting approaches taken in the lower courts and dissented from the Court's denial of certiorari.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Justice White's Principled Passion for Consistency
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.